Petition for Writ of Certiorari — Northwest Louisiana Fish & Game Commission v. United States (No. 09-516)

|43 (1) Supreme Court, U.S.

No.09-- 99-516 OCT 2& 2008

_ mupe PICE OF THE CLERK

Supreme Court of the Bnited States

NORTHWEST LOUISIANA FISH &

GAME PRESERVE COMMISSION,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

APPEAL FROM THE UNITED STATES Court

OF FEDERAL CLAIMS

PETITION FOR A WRIT OF CERTIORARI

WILLIAM P. CREws, JR.

WILLIAM P Crews, JR., L.L.C.

Post Office Box 1036

Natchitoches, Louisiana 71458

(318) 356-8001

Counsel for Petitioner

226010 cr

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

a

QUESTIONS PRESENTED

How can the federal navigational servitude legally

apply above the normal or ordinary high water mark

of the Red River, or extend to the Northwest

Louisiana Fish and Game Preserve through a

tributary that is not used for trade or commerce and

a dam built by the State of Louisiana in 1931?

How can the courts justify granting a privilege

without material basis to the public purpose of

navigation while denying special protection to any

other public uses, when just compensation for the

taking of private property is a due process right

guaranteed by the Fifth Amendment of the United

States Constitution?

eR ee ne Te ee ee eee ee ee ee ee ee ee ee ee

10

CORPORATE DISCLOSURE STATEMENT

The Northwest Louisiana Fish & Game Preserve

Commission (the “Preserve Commission”) is the

Louisiana state agency in possession of the Northwest

Louisiana Fish and Game Preserve made up of Black

Lake, Saline Lake, and Clear Lake in the Parish of

Natchitoches, Louisiana. The Preserve Commission is

the state entity responsible for the fish and game

preserve situated in rural northwestern Louisiana made

up of several lakes and contiguous land commonly

referred to as Black Lake Complex.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

CORPORATE DISCLOSURE STATEMENT .. ii

TABLE OF CONT ENED cccccccsocsenzvewans ill

TABLES OF APPENDICES oc ceccccccsesseves Vv

TABLE OF CITED AUTHORITIES ......... vi

Cr aera SY doi ceeneeciawioebeeeseus 1

JURISDICTIONAL STATEMENT .......... ]

CONSTITUTIONAL PROVISIONS

aos 4930 koe ee 1

STATEMENT OF THE CASE ............... 2

REASONS FOR GRANTING THE PETITION .. 10

I. REVIEW IS WARRANTED TO

ADDRESS THE MISAPPLICATION

OF THE NAVIGATIONAL SERVI-

TUDE TO THE FACTS OF THIS

CEE sn SAS ee Re eee eee 13

A. The Navigational Servitude Does not

Extend to the Northwest Louisiana

Fish and Game Preserve .......... 13

iv

Contents

Page

Il. REVIEW IS WARRANTED TO

RESOLVE THE CONFLICT IN

TREATMENT BETWEEN NAVIGA-

TION AND OTHER PUBLIC USES,

THE TAKING OF WHICH ARE

COMPENSABLE UNDER THE

UNITED STATES CONSTITUTION .. 23

ED erie ee Vansavave kneeadeosueses 30

Vv

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

Court Of Appeals For The Federal Circuit

ROUSE PU Oh, BD oon cccccccesecnsnsess la

Appendix B — Opinion Of The United States

Court Of Federal Claims Filed October 31,

PCy as 5c ae os cents h de oe Par ee pene l6a

vi

TABLE OF CITEDAUTHORITIES

Page

Cases:

Alameda Gateway, Ltd. v. U.S., 45 Fed.Cl. 757

eo iN as oes curd seen aeeaeses 13

Banks v. U.S., 2003 WL 18410 (C.A.Fed. 2003) ...10, 11

Banks v. U.S., 71 Fed.Cl. 501 (Fed.Cl.,2006) .... 26

Boling v. U.S., 220 F.3d 1365 (C.A.Fed. 2000) .. = 11

Boone v. U.S., 944 F.2d 1489 (C.A.9.Haw.,1991) .... 18,14

Dardar v. Lafourche Realty Co., Inc., 985 F.2d

PPO r errr ere TT eT re Tere 27

Farmland Preservation Ass’n v. Goldschmidt,

1g. 9 fon 8 2. .) | 27

Federal Real Estate & Storage Co. v. U.S.,

(4% he cee 26 ee 27

First Unitarian Church of Salt Lake City v. Salt

Lake City Corp., 308 F.3d 1114 (C.A.10,2002)

Fruin-Colnon Corp. v. Vogt, 500 FSupp. 606

I os cae vA RA ORE OME ORO Oe 27

vil

Cited Authorities

Page

Goose Creek Hunting Club, Inc. v. United States,

518 F.2d 579, 582, 207 Ct.Cl. 323 (1975) ..... 17, 18

Kaiser Aetna v. U. S., 444 U.S. 164 (1979) ...:.

PE Eee ee eS en EN A 11, 12, 138, 21

Kingsport Horizontal Property Regime v. U.S.,

46 Fed.Cl. (Fed.Cl.,2000) .............2. ee. 16

Lingle v. Chevron U.S.A. Inc., 125 $.Ct. 2074,

544 U.S. 528, 161 L.Ed.2d 876 (2005) ....... 24

Lykes Bros., Inc., v. U.S. Army Corps of

Engineers, 821 F.Supp. 1457 (M.D.F la. 1993)

Eee Reh eee Cee ERK EEK SARE ERESA LE EEERSEOD 17

Maritrans Inc. v. U.S.; 342 F.3d 1844

ne oe ae eee yen eeu Ew Ss 25

Northwest Louisiana Fish & Game Preserve

Commission v. U.S., 574 F.3d 1386

(C.A.Fed.,2009), 62 Fed.Cl. 760, 446 F.3d 1285,

a es aaa sau ckue dee een exe 1

Owen v. U.S., 851 F.2d 1404 (C.A.Fed.,1988) ...

a a te ee ae re eee 10, 11, 14, 15

Palm Beach Isles Assoc. v. U.S., 2008

WL 22987826 Fed.Cl..2008 .......cccccccces 13

vill

Cited Authorities

Page

Parm v. Shumate, 518 F.3d 135 (C.A.5.La.,2007)

PTET eT eee ee eee ee eee oer 26

Ridge Line, Inc. v. U.S., 346 F.3d 1346

(oe Rk errr Sere ree 25

Sarpy County, Neb. v. U. S., 386 F.2d 453,

181 Ct.CL. 666 (CL.CLIOGT) .. .cccccccvsccens 29

State of Illinois v. U.S., 15 Cl.Ct. 399 (1988) ... = 21

State of Wash. v. U.S., 214 F2d 33 (C.A.9, 1954) .... 29

Tri-State Materials Corp. v. U.S., 550 F.2d 1

CB BUTE) 6.6 6460 000005044005 eas eeeieee 11, 14

U.S. v. 30.54 Acres of Land, More or Less,

Situated in Greene County, Com. of Pa.,

90 F.3d 790 (C.A.3,1996) ........ ccc c ee eeee 25

U.S. v. Ballinger, 395 F.3d 1218 (C.A.11.Ga.,2005)

saeeuesb end p2408 ¥0ss60 sae 26

U.S. v. Certain Parcels of Land in Kent County,

Mich., 252 FSupp. 319 (D.C.Mich. 1966) .... 28

U.S. v. Cress, 243 U.S. 316 (U.S. 1917) ........ 17

U.S. v. Fuller, 93 S.Ct. 801, 409 U.S. 488,

SO Ss MO SO CROUED. di csvcsedecetcese vanes 24

ix

Cited Authorities

Page

U.S. v. Gossler, 60 FSupp. 971 (D.C.Or.1945)... = 27

United States v. General Motors Corp., 323 U.S.

373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) ...... 21, 28

United States v. Kansas City Life Ins. Co.,

a 11, 16

U.S. v. Shahani-Jahromi, 286 F.Supp.2d 723

ee sce ceeeesececeeeses 26

U.S. v. Virginia Elec. & Power Co., 81 S.Ct. 784

ee ees ch eye e sce srececcece 13

U. S. ex rel. Tenn. Valley Authority v. Welch,

66 S.Ct. 715, 327 U.S. 546, 90 L.Ed. 843 (1946)

a ala 25

U.S. v. Willow River Power Co., 324 U.S.

cscs cevccsceseses 19, 20, 21

Village of Norwood v. Baker, 19 S.Ct. 187, 172

U.S. 269, 43 L.Ed. 443 (1898) .............. 24

United States Constitution:

AE, i, 1, 23, 24

U.8.C.A. Const. Art. 1 § 8, cl. ......ccccccscces 2, 26

Cited Authorities

Page

Statutes:

I ne i eee 1

Ot ie ate ere a aaa )

Other Authorities:

LA Op.Atty.Gen., No. 92-472 (Oct. 22, 1992) .... 2

La. R.S. 9:1101

eae Gee eCeee eee Bes eaves eos 66400680 .8.4

]

OPINION BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit is reported at Northwest

Louisiana Fish & Game Preserve Commission v. U.S.,

574 F.3d 1386 (C.A.Fed.,2009). The government originally

moved for judgment on the pleadings, which was

granted by the United States Court of Federal Claims,

Nancy B. Firestone, 62 Fed.Cl. 760. Following reversal

of the judgment and remand, 446 F.3d 1285, the

government again moved for judgment on pleadings.

The United States Court of Federal Claims, 79 Fed.Cl.

400, granted the government’s motion. On appeal, the

Federal Circuit, Rader, Circuit Judge, held that the

property interests of petitioner, the Preserve

Commission, in the lake and contiguous lands were

subservient to the navigational servitude and affirmed,

Northwest Louisiana Fish & Game Preserve

Commission v. U.S., 574 F.3d 1386 (C.A.Fed.,2009).

Judge Rader also filed an Additional View.

JURISDICTIONAL STATEMENT

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S.C.A. Const.Amend. 5.

“No person shall be...deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just

compensation.”

2

U.S.C.A. Const. Art. I § 8, cl. 3.

Congress shall have power “To regulate Commerce

with foreign Nations, and among the several States, and

with the Indian Tribes.”

STATEMENT OF THE CASE

The fish and game preserve at issue was created on

1926 as a wildlife and fisheries habitat and recreational

area for the citizens of the State. The purpose of the

preserve is to provide Louisiana residents and visitors

with use and enjoyment. The Preserve Commission

functions as the entity to effectuate and protect those

objectives.

Black Lake Complex, is connected to Red River by

a tributary called Saline Bayou, through which flood

waters were historically released and the lake was

periodically drawn down in order to facilitate

maintenance of the preserve. At one end of the tributary

is Allen Dam, which was constructed by the State of

Louisiana shortly after the creation of the fish and game

preserve.

Title to the land around and under the lake, as well

as the lake itself, is held by the State of Louisiana. The

State owns and has owned lakes and lake beds to the

exclusion of others by virtue of its inherent sovereignty

since 1812, the date of admission to the union, and

then by enactment of specific legislation in 1910.

Op.Atty.Gen., No. 92-472 (Oct. 22, 1992); La. R.S. 9:1101.

3

The Preserve Commission is a state created agency,

or “political subdivision,” that is charged with all

regulation, enforcement, and adjudication pertaining to

Black Lake Complex. The Preserve Commission has the

explicit right, power, and authority to sue and be sued

as a subdivision of the State.

Further, petitioner also makes rules and regulations

to administer the preserve, regulates and controls the

taking of fish and game from the preserve, establishes

closed seasons, fixes fish and game limits, employs

wardens, builds roads, provides camps and boats, fixes

fees for hunting and fishing, as well as State licenses,

regulates the building and location of duck blinds, issues

licenses and permits, enforces prohibitions contained

in its rules and regulations, leases to commercial fishing

organizations, employs all necessary labor, establishes

fish hatcheries, and does all things necessary to conserve

and propagate fish and game in the preserve. The

Preserve Commission has the explicit power and

authority to “buy, lease, or sell properties necessary to

the establishment and maintenance or improvement of

the said Preserve.” In short, the Preserve Commission

has the property rights generally associated with

ownership.

Respondent, through the United States Corps of

Engineers (“Corps”), erected five locks and dams along

Red River to increase its depth and facilitate navigation.

Between Lock No. 3 and Lock No. 4 is the navigation

pool in question, Pool 3, to which Black/Clear Lake is

connected by the tributary. Pool 3 was originally

designed to have a water level of 87 MSL, the maximum

4

level determined by the Corps’ New Orleans District to

avoid ground water damage and associated claims for

damages.

However, the level of Pool 3 was eventually raised

to 95 MSL. Although property and property rights along

the river were acquired by or on behalf of the Corps, no

rights were acquired related to petitioner’s interest in

the area. Damage to Black Lake Complex caused by the

artificially maintained level of the river occurred after

the event of complete impoundment of Pool 3.

In July of 1995, the Corps’ Vicksburg District

Project Review Board reviewed and endorsed the Final

Project Management Plan, which outlined “remaining

project requirements” as of January 1995. The Plan

contained the following provision:

(7) aa. Pool 3 Lakes

Three State-owned lakes adjacent to Pool 3,

Nantachie, Clear-Black, and Saline, will be

impacted to varying degrees by the

impoundment of the 95 foot navigation pool

above Lock and Dam No. 3. The most

significant impact to the lakes is associated

with the ability to draw the lakes down by

gravity flow for aquatic weed control and

fisheries management. However, other

aspects such as structural stability of the lake

dams and project induced flooding have also

been investigated.

5

Subsequently, additional detailed design has

been initiated and this design effort and

construction have been added to the project

scope, cost, and schedule. Also, added as a

remaining requirement was a five year lake

monitoring study which was part of the

recommended plan in the approved DM 44E.

This study monitors water quality and

fisheries to determine the effects of operation

of the navigation pool. The study has been

initiated and is scheduled to be completed in

1998.

After 1995, the loss and damages which eventually

gave rise to this litigation as a result of the raising of

the level of Pool 3 to 95 MSL gradually began to occur.

In late 1996, the Preserve Commission requested the

Red River Water Way Commission to obtain assistance

from the Corps in a proposed draw down of Black/Clear

Lake based on concrete data that the lake complex was

having an adverse impact from the project.

The Corps refused to cooperate, despite having

maintained in the past that such data would be heeded

and despite provisions of its own Project Management

Plan. The Corps denied the Preserve Commission’s

request because navigation would allegedly be impeded

by a draw down.

By early 1997, petitioner began encountering a

severe hydrilla infestation of Black Lake Complex,

making some parts of the preserve all but useless for

recreational purposes. Now, more than ten years later,

the condemnation of Black Lake Complex has only

increased with more infestation.

6

Historically, the petitioner had been able to control

fish populations and aquatic vegetation by drawing down

the lake complex through the tributary that connects

the lakes to Red River. However, petitioner was unable

to draw down the lake for the first time 1997, because

the United States Corps of Engineers (“Corps”) had

recently completed a project to raise the Mean Sea Level

(MSL) of the Red River eight feet through a series of

locks and dams that created navigational pools. Raising

the level of the Red River had a domino effect that

eventually resulted in the permanent taking of the lake

complex. What resulted was a gradual deterioration of

the preserve, as follows: impoundment of the

navigational pool was the governmental act, severe

hydrilla infestation was the direct but delayed result,

and gradual loss of use of the property was the damage

suffered by petitioner.

The nature of the consequential damage of the

increased pool level is best described by the Corps in a

letter dated December 20, 1999, addressed to the

Executive Director of the Red River Waterway

Commission in which the Corps acknowledges that they

received complaints in 1996 from landowners concerned

about the effects of the project to improve navigation

of Red River. The Chief of the Corps Real Estate

Division stated, “We initially attributed this to the fact

that the pool had recently been impounded (Feb 1995)

and the extended high water mark that occurred during

mid 1995 and early 1996. We then entered a drier period

with no complaints from landowners in Pool 5 concerning

project impacts.” The Chief went on to explain that it

was not until early 1998 that they again started receiving

information that the new pool level was adversely

7

affecting land in the vicinity of the pool, which motivated

the Corps to start an investigation into the post project

impacts. The Corps concluded that lands above the

ordinary high water elevation were being impacted for

which owners were not compensated. The letter

referenced maps depicting “new inundated areas” and

suggested that “there is a possibility that additional

affected areas could be identified in the future.”

Identical problems and complaints were associated with

Pool 3.

The loss of the ability to draw down the lake through

the tributary to the level of the ordinary high water mark

of the Red was not the only problem for petitioner

caused by the actions of the government. The elevation

of the navigational pool significantly increased the

tailwater condition of the tributary and Black Lake

Complex, thereby reducing flood control of the lake.

The higher tailwater in the lakes’ tributary caused by a

higher mean sea level of Pool 3 disabled the discharge

capacity of Black/Clear Lake through the spillway.

The increased level of the water table around

Pool 3 is evidenced by the geological investigation of

the vicinity performed by Geotechnical Testing

Laboratory in October of 1996 at the request of the

Red River Waterway Commission. The report generated

by the investigation of the troublesome ground water

and subsurface conditions demonstrated a relatively

high water condition around Pool 3 attributable to the

8

level of the navigational pool of Red River. The

investigators found that

“the subsurface water regime is subject to

change with variations in climatic conditions

and possibly flow levels within adjacent

waterway. It is not possible to predict

future groundwater fluctuations based upon

single, short-term observations. Long-term

monitoring of groundwater conditions with

respect to river flow levels and precipitation

rates will be required to evaluate correlations

between the various influences.”

The problem with an increased water table was and

is compounded by the lost ability to draw down the lake

through Allen Dam and the lakes’ tributary. Additionally,

petitioner has experienced a drastic increase of land

flooding from the Lake as a result of the raising of the

water level of Pool 3. But most importantly, the

continuous high water level of Black/Clear Lake has

resulted in an ongoing and increasingly severe problem

with aquatic growth, namely hydrilla and coontail, which

has rendered the northern part of the lake virtually

useless. A large portion of the lake is not even accessible

by boat. Managing fish populations has been severely

impaired, and the situation continues to deteriorate

exponentially. The last scheduled draw down of Black

Lake occurred in the Fall of 1994, before the completion

of the project to raise the elevation of navigational pool

to 95 MSL. That draw down was successful in keeping

the Black Lake Complex functional, but that was more

than fourteen years ago.

9

On January 8, 1997, the Preserve Commission called

a special meeting and passed a resolution to permit

pursuing litigation against the Red River Waterway

Commission and the Corps. The meeting was

precipitated by the aforementioned denial of the

Preserve Commission’s written request for the Corps

to assist in a proposed draw down of Black/Clear Lake.

As previously stated, the Corps denied responsibility

for the Preserve Commission’s loss, the Corps rejected

the Preserve Commission’s request based on the

contention that navigation would be impeded by a draw

down.

For the last decade, the Preserve Commission has

consistently pursued compensation from the federal

government for the loss of use of land and water, and

the taking and destruction of petitioner’s property, as

a result of the raising of the water level of Pool 3 from

87 MSL to 95 MSL and the artificial maintenance of the

river at the higher level. Previously, petitioner alleged

damages in the estimated amount of 26 million dollars

based on an appraisal by the Corps assessing the cost

to restore the subject property and use of the property

known as Black Lake Complex. However, with the

passage of time, that estimation becomes less and less

realistic as an adequate amount to address the taking

suffered by petitioner.

In March of 2004, respondent filed a motion for

judgment on the pleadings on several grounds, only one

of which the Court of Federal Claims held was grounds

for dismissal: suit was time-barred under 28 U.S.C.A.

§ 2501. Petitioner appealed to the Federal Circuit Court

of Appeal, which held that the taking did not occur as

10

soon as Pool 3 was elevated to 95 MSL, therefore, the

gradual process instigated by respondent’s activity

resulted in a permanent taking less than six years before

commencement of petitioner’s case.

On remand, the lower court subsequently granted

the government’s motion on grounds of navigational

servitude. The Preserve Commission appealed because

based on the facts in evidence and applicable law, it defies

legal precedence for the lower court to have found that

the federal navigational servitude extends from

Red River to Black Lake Complex, where the gradual

taking occurred that forms the basis of the inverse

condemnation, or taking, of property rights to use, enjoy,

and maintain the fish and game preserve. The lower

court was affirmed by the court of appeal. Hence, the

Preserve Commission applies to this Court for a writ of

certiorari for redress.

REASONS FOR GRANTING THE PETITION

Erosion occurring above the ordinary high water

mark of the Red River would have resulted in a

compensable taking of property under the Fifth

Amendment, regardless of the navigational servitude.

Owen v. U.S., 851 F.2d 1404 (C.A.Fed.,1988), Banks v.

U.S., 2003 WL 18410 (C.A.Fed. 2003). Therefore, it

seems axiomatic that the subject taking of the Black

Lake Complex and the condemnation of most if not all

of the use of the fish preserve, as a result of the raising

of Pool 3, would also be compensable. The interest at

issue relates to the property itself, which is slowly being

taken as a result of an authorized government act.

11

The taking did not occur below the ordinary high

water mark of the Red River. The damage suffered in

the Black Lake Complex by the Preserve Commission

is tantamount to the damage suffered in Owen v. U.S.,

851 F.2d 1404 (C.A.Fed.,1988), Boling v. U.S., 220 F3d

1365 (C.A.Fed. 2000), Banks v. U.S., 2003 WL 18410

(C.A.Fed. 2003), United States v. Kansas City Life Ins.

Co. 339 U.S. 799 (1950), and Kaiser Aetna v. U. S., 444

U.S. 164 (1979).

If a governmental project imposes permanent

consequences on private property that are the direct,

natural, or probable result of an authorized activity and

are inevitably recurrent, then a Fifth Amendment

taking has occurred. Tri-State Materials Corp. v. U.S.,

550 F:2d 1 (Cl.Ct. 1977), Boling v. U.S., 220 F.3d 1365

(C.A.Fed. 2000).

Petitioner has and does now contend that the

continuing process of physical events by which

respondent permitted the taking of petitioner’s lawful

property interest in the fish and game preserve was

grounds for allowing petitioner to file suit once the

nature and extent of the taking and its effect became

clear and stabilized. The Preserve Commission claim

involves the taking of the property comprising Black

Lake Complex, which is above the ordinary high water

mark of the Red River. The evidence supports the

Preserve Commission’s claim, regardless of the

government’s attempt to redefine the real issue (i.e. a

gradual taking of the iakes and preserve) into

something that, conveniently, has no property right

attached to it.

12

In the case at bar the taking claim is for loss of use

and enjoyment of the lakes, property rights that were

granted to the Preserve Commission under Louisiana

state law. Petitioner’s loss, which is a loss of property

rights much like the right to exclude others in Kaiser

Aetna v. U. S., 444 U.S. 164 (1979), is traceable to the

government’s project to elevate Red River to an

artificial level. These facts constitute a taking by a

gradual physical process for which compensation should

be provided in order for the Preserve Commission to

restore the fish and game preserve and prevent the

complete condemnation of the lake complex in the future.

These facts do not, however, indicate a taking of

property below the ordinary high water mark of the river

such that the navigational servitude would preclude a

claim for compensation.

Furthermore, even if the navigational servitude did

apply to the facts in this case, there is no material basis

for the disparate treatment of navigation as opposed to

other public uses which trigger the Takings Clause of

the Fifth Amendment and require compensation.

13

I. REVIEW IS WARRANTED TO ADDRESS THE

MISAPPLICATION OF THE NAVIGATIONAL

SERVITUDE TO THE FACTS OF THIS CASE

A. The Navigational Servitude Does not Extend

to the Northwest Louisiana Fish and Game

Preserve

Invocation of the federal navigational servitude

cannot be a pretext to avoid an otherwise compensable

taking. Palm Beach Isles Assoc. v. U.S., 2003 WL

22937326 Fed.Cl.,2003. The navigational servitude does

not create a blanket exception to the Takings Clause of

the Fifth Amendment. Kaiser Aetna v. U. S., 444 U.S.

164 (1979), Alameda Gateway, Ltd. v. U.S., 45 Fed.Cl.

757 (Fed.Cl.,1999). Unlike the power to regulate

navigable waters under the commerce clause, the

navigational servitude is not coextensive with Congress’

regulatory authority. Boone v. U.S., 944 F.2d 1489

(C.A.9.Haw.,1991).

Furthermore, the servitude only encompasses the

exercise of federal power with respect to the stream

itself and lands beneath its ordinary high-water

mark. U.S. v. Virginia Elec. & Power Co., 81 S.Ct. 784

(U.S.Va.,1961), emphasis provided. However, the

government must compensate for any taking of property

above the ordinary high water mark. In other words,

“Those owning land within the bed of a

navigable stream are subject to the

navigational servitude and miay not claim

compensation when the Government takes

the land in aiding the navigability of the

14

stream, while those beyond the ordinary high

water mark are not subject to navigational

servitude and may recover.”

Tri-State Materials Corp. v. U.S., 550 F.2d 1 (C1.Ct.

1977).

The specific basis for the Preserve Commission’s

claim in the case at bar is that the Corps inversely

condemned petitioner’s lake and surrounding land when

it undertook improvements of the Red River in order

to facilitate commercial use of the river, and failed to

pay just compensation for the taking. The Preserve

Commission’s property is distinctly separate from Red

River; in between the lake complex and the river are a

tributary and a state dam since 1931.

As the Federal Circuit Court of Appeal has

explained, “there must be horizontal limits to the extent

of a riverbed, or else imposition of the navigational

servitude up to the ordinary high-water mark

theoretically could extend indefinitely.” Owen v. U.S.,

851 F.2d at 1410 (1990). “The navigational servitude only

relieves the government of the obligation to pay

compensation for acts interfering with the ownership of

riparian, littoral, or submerged lands which, if not for

the fact that a waterway is involved, would require

compensation under the fifth amendment.” Boone v.

U.S., 944 F.2d 1489, 1494 (C.A.9,1991).

Because the taking of the land and property interest

in question in the case at bar is outside and/or above

the ordinary high water mark of the Red, it is outside

15

the scope of the navigational servitude, which the Corps

should not be able to rely on as a defense to petitioner’s

claim.

In Owen v. U.S., 851 F.2d 1404 (C.A.Fed.,1988), the

Federal Circuit Court held that

“liln appropriate circumstances,

compensation can be owed for consequential

effects of construction activities to further

navigation, undertaken solely within the

boundaries of a river bed subject to the

Government’s navigational servitude; it is not

the location of the cause of the damage that

is relevant, but the location and permanence

of the effect of the government action causing

the damage that is the proper focus of the

taking analysis.”

Emphasis provided.

In that case, the Corps of Engineers argued that it

was within its authority as owner of the dominant

navigational servitude to intentionally redirect the

course of the Tombigbee River to undercut an adjoining

landowner’s property, resulting in the landowner’s farm

collapsing into the river due to lack of lateral support.

The court of appeals held that the navigational

servitude did not extend to existing fast lands. Owen at

1043. Because the property alleged as lost due to

government-caused erosion was outside the bed of the

river, it-was unaffected by the navigational servitude.

16

Therefore, it is well established that even if the

navigational improvements were within the proper

boundaries, a taking occurs when the damaged property

is located outside the water’s ordinary high-water mark,

and thus renders the government liable for the payment

of just compensation. Kingsport Horizontal Property

Regime v. U.S., 46 Fed.Cl. (Fed.Cl.,2000).

This was the rationale of United States v. Kansas

City Life Ins. Co. 339 U.S. 799 (1950), where the U.S.

Supreme Court held that when a navigable stream was

raised by the government to its ordinary high-water

mark and maintained continuously at that level in the

interest of navigation, the government was liable

“for the effects of that change [in the water level] upon

private property beyond the bed of the stream.” 339 U.S.,

at 800, 801.

The Court in Kansas City Life allowed recovery for

damages to land located on a non-navigable tributary

of the Mississippi River resulting from the artificial

maintenance of the Mississippi at its high-water level.

The land was located one and one-half miles from the

river on the tributary. The raised water level in the river

also raised the local water table which blocked the

drainage of the affected parcel’s surface waters, thereby

causing the destruction of the land’s agricultural value.

Since the land, not in the bed of a navigable stream,

was not burdened with the navigational servitude, the

Court held that a taking had occurred. /d. at 802-03.

Kansas City Life thus provides a clear application

of the Supreme Court’s view of the horizontal and

vertical limits on the scope of a stream bed, and of the

17

corresponding scope of the navigational servitude. It is

also particularly applicable to the case at bar because

the government here did not establish, nor did the lower

court find that the tributary from Black Lake Complex

was navigable in FACT, as required by law. U.S. v. Cress,

243 U.S. 316 (U.S. 1917).

“To qualify as a navigable waterway of the

United States subject to federal jurisdiction

under the Commerce Clause, the waterway

must form, either by itself or by united with

other waters, a continued highway over which

commerce may be carried on with other states

or foreign countries in the customary modes

in which commerce is conducted by water.”

Lykes Bros., Inc., v. U.S. Army Corps of Engineers,

821 FSupp. 1457, 1464 (M.D.F la. 1993). The navigational

servitude does not cover non-navigable tributaries.

United States v. Cress, 243 U.S. 316, 326-27, 37 S.Ct.

380, 384, 61 L.Ed. 746 (1917), Goose Creek Hunting

Club, Inc. v. United States, 518 F.2d 579, 582, 207 Ct.Cl.

323 (1975).

Trade or commerce is not conducted on Sabine

Bayou, the tributary in question, at one end of which

the Allen Dam was built shortly after the fish and game

preserve was lawfully established by the State in 1926.

However, even if the tributary was navigable, the

navigational servitude would not then extend past the

spillway into the Black Lake Complex and preserve

lands.

18

In Goose Creek Hunting Club, Inc. v. United States,

518 F.2d 579, 582, 207 Ct.Cl. 323 (1975), the landowner

owned property adjacent to a stream, which flowed into

a navigable river, which, in turn, flowed into another

navigable river on which the government had

constructed a dam. Prior to construction of the dam,

the property adjoining the stream, or creek, was used

by the landowner for hunting and grazing cattle.

In addition, the trees growing along the banks of the

creek had commercial value. After completion of the

dam, however, the property bordering the creek flooded.

In determining that the landowner was entitled to

compensation for the permanent flowage easement, the

court held that the property adjoining Goose Creek was

not subject to the government’s navigational servitude

covering the beds of the two navigable rivers.into which

it flowed, because such property was situated beyond

the beds of those rivers. Goose Creek, 518 F.2d at 583.

Alternatively, the court held that “even if Goose Creek

were considered to be a navigable stream, the landowner

nonetheless would be entitled to compensation, since

the strips of land adjacent to the creek were above the

ordinary high-water mark of Goose Creek under any of

the definitions stated above.” Jd. at 584.

In the case at bar, Black Lake Complex is subject to

the navigation or navigational project of the Red River,

and the lake and contiguous land in the Preserve

Commission’s possession are above the ordinary high

water mark of Pool 3. Therefore, the U.S. should be

subject to liability for damages caused to the property

as a result of the elevation of Pool 3 to 95 MSL.

19

The two lower courts’ reliance on U.S. v. Willow

River Power Co., 324 U.S. 499 (U.S. 1945), is misplaced.

In that case, suit by the Willow River Power Company

was brought against the United States to recover

compensation for impaired efficiency of the company’s

hydroelectric plant caused by the raising the water level

of the St. Croix River. The issue in that case was whether

a taking had occurred, which the court concluded in the

negative: “Our question is whether the damage is the

result of a ‘taking’ of private property, for which just

compensation is required by the Fifth Amendment.”

Willow Creek at *500. The plaintiff sought an award

solely for the loss of power; there was no allegation or

finding that any other injury was done to property or

that the claimant otherwise was deprived of any use of

its property, or the impairment of the value of land.

Id. at 501. Under these circumstances, the court in

Willow River determine that the plaintiff’s allegation

did not rise to a taking because it involved an “economic

interest” that did not constitute a property right:

“not all economic interests are ‘property rights’; only

those economic advantages are ‘rights’ which have the

law back of them, and only when they are so recognized

may courts compel others to forbear from interfering

with them or to compensate for their invasion.”

Td. at 502.

The Willow Creek Court further stated,

“We cannot... call such a claim as we have

here a ‘property right’; whether it is a

property right is really the question to be

answered. Such economic uses are rights only

when they are legally protected interests.

20

Whether they are such interests may depend

on the claimnant’s rights in the land to which

he claims the water rights to be appurtenant

or incidental; on the navigable or non-

navigable nature of the waters from which he

advantages; on the substance of the

enjoyment thereof for which he claims legal

protection; on the legal relations of the

adversary claimed to be under a duty to

observe or compensate his interests; and on

whether the conflict is with another private

riparian interest or with a public interest in

navigation. The claimant’s assertion that its

interest in a power head amounts to a

‘property right’ is made under circumstances

not present in any case before considered by

this Court.”

Id. at 503.

In the case at bar, the taking claim is based on injury

to the use of the lakes and preserve, for which the

Preserve Commission seeks compensation. The question

is the impairment of and physical damage to the

property itself, not an economic advantage disconnected

to any property right. The Preserve Commission does

not have nor has alleged any economic value for use of

the Red, as in Willow Creek. Petitioner has always

sought compensation for loss of use and enjoyment, and

other property rights associated with possession of the

lakes and, necessarily, the purpose for which the fish

and game preserve was established so long ago.

21

The case at bar is more analogous to Kaiser Aetna

v. U.S., 444 U.S. 164 (U.S.,1979), in which the owner of

what was once a private pond, separated from concededly

navigable water by a barrier beach and used for aquatic

agriculture, invested substantial amounts of money in

making improvements. The government contended that

as a result of the pond’s connection to the navigable

water, the private property became subject to the

federal navigational servitude. The United States

Supreme Court did not agree. The Court, distinguishing

Willow Creek, stated

“We think, however, that when the

Government makes the naked assertion it

does here, that assertion collides with not

merely an ‘economic advantage’ but an

‘economic advantage’ that has the law back

of it to such an extent that courts may ‘compel

others to forbear from interfering with [it] or

to compensate for [its] invasion.’””

Kaiser Aetna at 178.

Accordingly, if a plaintiff’s interest involves a legally

enforceable right, that interest will be considered

“property” within the context of the takings clause of

the Fifth Amendment. State of Illinois v. U.S., 15 Cl.Ct.

399, (1988). Stated slightly differently, property within

the Fifth Amendment denotes the group of rights

inhering in a party’s relation to the physical thing, as

the right to possess and use it. United States v. General

Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed.

311 (1945).

22

The Preserve Commission’s property and legally

enforceable interests vest in petitioner the right to bring

a taking claim against the government in order to

compel compensation for the interference with said

interests. Therefore, in the context of the case at bar,

although the Preserve Commission does not have title

to the property at issue, petitioner does have property

interests protected by the takings clause of the

Fifth Amendment. In fact, there is no right or interest

with regard to the lakes and land comprising the fish

and game preserve that the Preserve Commission does

not have under Louisiana law because it has the legal

duty of the Preserve Commission to protect the rights

inherent in possession of the preserve.

It is the taking of many of those property rights that

the Preserve Commission is undertaking its obligation

to seek compensation from the government. The taking

of the property rights at issue occurred above the

ordinary high water mark of the Red River. Therefore,

the Federal Claims Court and the Federal Circuit Court

rulings that the navigational servitude precludes the

Preserve Commission’s claim are not supported by the

evidence in the record or the relevant law.

23

II. REVIEW IS WARRANTED TO RESOLVE THE

CONFLICT IN TREATMENT BETWEEN

NAVIGATION AND OTHER PUBLIC USES, THE

TAKING OF WHICH ARE COMPENSABLE

UNDER THE UNITED STATES CONSTITUTION

In an additional view, Federal Circuit Judge Randall

R. Rader raises an important question regarding a

conflict between the federal courts’ treatment of certain

public purposes which trigger the Fifth Amendment

Takings Clause. The result of the conflict is that takings

for public use generally require just compensation, while

one purpose, i.e. navigation, does not entitle claimants

to compensation as a result of a historic privilege that

constitutes a dominant servitude.

While the implications of this question are broad and

appear to reach as far back as the birth of this nation as

we know it, the factual and legal issues in the case at

bar are also implicated by the resulting conflict in the

way the Constitution has been applied to seemingly

analogous takings cases.

The content of the additional view reads as follows:

RADER, Circuit Judge, additional view.

While I endorse the reasoning and results of

the panel, I write separately to highlight a

distressing ambiguity in this court’s binding

precedent. Neither this court nor the

Supreme Court has proffered any material

basis justifying a different treatment of

navigation versus other Fifth Amendment

24

public purposes. Why should navigation be

received any differently than highway

transportation, public safety, or

environmental protection? In light of the

special protections afforded to navigation, it

seems only prudent that such a material basis

be provided. (Appendix A, 15a.)

Under the Fifth Amendment of the United States

Constitution, “No person shall be. . . deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.” U.S.C.A. Const.Amend. 5.

Courts have interpreted the Fifth Amendment to

mean that where a government requires land owners to

suffer permanent invasion of their property, however

minor, the government must provide just compensation.

Lingle v. Chevron U.S.A. Inc., 125 8.Ct. 2074, 544 U.S.

528, 161 L.Ed.2d 876 (2005).

The constitutional requirement of just compensation

upon the taking of private property for public use derives

as much content from basic equitable principles of

fairness as it does from technical concepts of property

law. U.S. v. Fuller, 93 S.Ct. 801, 409 U.S. 488, 35 L.Ed.2d

16 (1973). In other words, it is a question of due process

of law. Village of Norwood v. Baker, 19 S.Ct. 187, 172

U.S. 269, 48 L.Ed. 443 (1898).

The Takings Clause does not allow an owner to

prohibit the government from taking private property

altogether; rather, the language of the clause prohibits

the government from forcing some people alone to bear

25

public burdens which, in all fairness and justice, should

be borne by the public as a whole. Maritrans Inc. v.

U.S., 342 F.8d 1344 (C.A.Fed.2008). Therefore, when a

public need arises that requires the acquisition of

property, individuals may be required to relinquish

ownership of property so long as they are given

that just compensation which this clause requires.

U.S. ex rel. Tenn. Valley Authority v. Welch, 66 S.Ct.

715, 327 U.S. 546, 90 L.Ed. 848 (1946).

For example, the government may not take or

impose an easement without just compensation under

the Takings Clause. Ridge Line, Inc. v. U.S., 346 F.3d

1346 (C.A.Fed.,2003). Nor may the government condemn

easements under the Fifth Amendment without

compersation. First Unitarian Church of Salt Lake City

v. Salt Lake City Corp., 308 F.3d 1114 (C.A.10,2002).

That being said, there is one exception to this

general rule that the federal government plays like a

wild card whenever navigation is involved. So the issue

at hand is this: why does a jurisprudential privilege with

no material basis trump a due process right guaranteed

by the Fifth Amendment of the U.S. Constitution?

In U.S. v. 80.54 Acres of Land, More or Less,

Situated in Greene County, Com. of Pa., 90 F.3d 790

(C.A.3,1996), the court explained that although the Fifth

Amendment requires payment of just compensation for

private property taken for public use, the government

is not required to pay for economic losses resulting from

the exercise of its “navigational servitude,” which is its

power to regulate the use of navigable waterways,

because navigable waterways have always been under

26

the exclusive control of the federal government under

the Commerce Clause.

Therefore, the courts have held that the basis of

the federal government’s “dominant servitude” over the

navigable waters of the United States arises from the

Commerce Clause of the United States Constitution.

Parm v. Shumate, 518 F3d 185 (C.A.5.La.,2007), Banks

v. U.S., 71 Fed.Cl. 501 (Fed.Cl.,2006).

The Commerce Clause of the United States

Constitution broadly refers to the regulation of

commerce, and provides that Congress shall have power

“To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.”

U.S.C.A. Const. Art. I § 8, cl. 3.

The channels of interstate commerce which

Congress may regulate under its commerce clause

power are the routes through which commerce travels,

and the term refers to navigable rivers, lakes, and

canals, the interstate railroad track system, the

interstate highway system, interstate telephone and

telegraph line, air traffic routes, television and radio

broadcast frequencies, and satellite communication

frequencies on, over, and through which flow the goods,

commodities, and information which constitute

commerce between places in different states. U.S. .

Shahani-Jahromi, 286 F.Supp.2d 723 (E.D.Va.,2003),

U.S. v. Ballinger, 395 F.3d 1218 (C.A.11.Ga.,2005).

On the surface, it does sound logical that a

navigational servitude is the right of the public to use

navigable waterways as continuous highways for the

27

purpose of navigation in interstate commerce as in cases

like Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824

(C.A.5,1993). However, to make such a statement raises

the question of why other means of interstate commerce

within the regulatory power of Congress are not also

granted special protection, privilege, or dominance.

Highways, for example are within the power of

Congress to regulate under the Commerce Clause.

Additionally, highway transportation is also a public use

covered by the Fifth Amendment. Yet the acquisition of

private property for the improvement of a highway by

the government is a Fifth Amendment taking that

requires just compensation in order to comply with due

process of law. Federal Real Estate & Storage Co. v. U.S.,

79 Ct.Cl. 667 (Ct.Cl.,19383), Fruin-Colnon Corp. v. Vogt,

500 FSupp. 606 (S.D.I11.,1980).

In Farmland Preservation Ass’n v. Goldschmidt,

611 F2d 233 (C.A.8,1979), a federal interstate highway

project through a rural area between Cedar Rapids and

Waterloo bisected farm lands adapted to various

agricultural uses. As a result, the contemplated highway

would force the affected farmers into unfavorable

diagonal operations. The court held that “[t]he

landowners are entitled, of course, to just compensation

for their lands that are taken in connection with the

project” pursuant to the Fifth Amendment.

Goldschmidt at 237. “And where, as here, partial takings

are involved, the landowner is entitled to be

compensated not only for the value of his land that is

actually taken, but also for the diminution of the value

of what is left to him after the taking.” Jd. See also, U.S.

v. Gossler, 60 F.Supp. 971 (D.C.Or.1945), where the

28

government condemned a parcel of land servient to a

right of way connecting a gravel bar with a highway, the

owner of the right to take gravel from bar had a

compensable property interest in the right of way other

than the value of the way itself, and the government

was not free from liability to such owner for the taking

of their interest in the way.

In U.S. v. Certain Parcels of Land in Kent County,

Mich., 252 F:'Supp. 319 (D.C.Mich. 1966), a condemnation

proceeding in connection with the construction,

reconstruction, and improvement of the Michigan

Highway Project I-96-1(10)66, the court denied the

government’s motion for summary judgment. The court

held that the issue as to whether the interference with

the owner’s property, a portion of which was condemned

in connection with construction, reconstruction and

improvement of a highway project, was so substantial

as to be a taking, and thus compensable under the Fifth

Amendment precluded summary judgment. “What is at

issue here is a claim that the interference with

defendant’s property is so great as to render that

property ineffective and useless (in effect, destroyed)

for [its] purposes[.]” Certain Parcels of Land in Kent

County, Mich. at 324, also citing United States v. General

Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311

(1945)

“The courts have held that the deprivation of

the former owner rather than the accretion

of a right or interest to the sovereign

constitutes the taking. Governmental action

short of acquisition of title or occupancy has

29

been held, if its effects are so complete as to

deprive the owner of all or most of his interest

in the subject matter, to amount to a taking.”

Even a municipality, a county, a state or another

public entity having responsibility for the property taken

has sufficient property interest to maintain action and

is entitled to compensation for the taking. State of Wash.

v. U.S., 214 F.2d 33 (C.A.9, 1954), Sarpy County, Neb. v.

U. S., 386 F.2d 453, 181 Ct.Cl. 666 (Ct.C1.1967).

Therefore, an unacceptable conflict has arisen

between the way the courts handle land owners’ rights

in the cases discussed above involving highways as a

public use, and the way plaintiffs such as the Preserve

Commission are treated. Review is warranted to resolve

this conflict, since the navigational servitude is a

jurisprudentially created privilege, while just

compensation is a constitutional right to due process of

law.

30

CONCLUSION

Based on the foregoing, Petitioner respectfully

requests the Court to grant the Petition for a Writ of

Certiorari.

Respectfully submitted,

WILLIAM P CREws, JR.

WILLIAM P Crews, JR., L.L.C.

Post Office Box 1036

Natchitoches, Louisiana 71458

(318) 356-8001

Counsel for Petitioner